Help - ILR Refused applied SET(M) instead of EEA4

[indiangardner]

Hello mate, I want some advice and that also free If I can

I have lived in UK for 10 years legally and with last five years as the spouse of an EEA national. I applied for ILR on expiry of my current visa on ILR set (M) which is settlement on the marraige basis.

Now I have been refused ILR and asked to leave the country as my Visa has expired during the process of application though with a right of appeal against the decision from the UK.

I have applied in the wrong category - I should have applied in either EEA4 as completing 5 years on EEA spouse Visa or long stay 10 years category.

Now my question is can I reapply in my category while I have been declared an illegal entrant into the country. Should I reappeal first and then apply or please suggest a best course of action.

I shall forever be grateful for your help, replies and thoughts about me.

[vinny]

Being refused under the immigration rules does not affect your rights/eligibility under the EEA regulations.

[indiangardner]

Sorry I forgot to mention that I am a NON-EEA national ie Indian passport holder.
Can I still reapply to my EEA4 category without an official prejudiced.
And My application was one day late received by the homeoffice when my 5 year spouse visa expired.

[askmeplz82]

Sorry I forgot to mention that I am a NON-EEA national ie Indian passport holder.
Can I still reapply to my EEA4 category without an official prejudiced.
And My application was one day late received by the homeoffice when my 5 year spouse visa expired.

Yes you can as long as your EEA family member exercising treaty right in the UK you are a legal resident even if you don't apply for EEA4

[indiangardner]

Thanks for replying.

This is just reiterating

My leave to remain has expired to live in UK, now when they opened a case under the ILR marriage act they refused the application and have made me an illegal entrant in UK as my leave to remain in UK for 5 years has expired. And sent me an application to appeal against there decision within the UK.

Should I appeal to justice.gov.uk and then apply or should I just straightforward send them my application to Home Office EEA section.

Any information is appreciated.

[Obie]

Vinny made precisely the right point.

You had an option of varying your application whiles it was still pending, and using SET (O) , but that option is not open to you any longer.

You may appeal and raise the EEA permanent Residence point, and also the long residence point, and an immigration judge has the power to allow your appeal under the EEA Regulations or under the immigration, provided you meet all the substantive rules.

In regards to the Long Residence aspect, a judge cannot allow it as it require a discretion to be exercised to allow time spent as a family member of an EU national. If that discretion has not been exercised by the SOS, a judge cannot exercise firstly.

The option is open to you to appeal for EEA 4.

[indiangardner]

Really it is a talk to up on my part I wish I had sent the application earlier, Does anyone know how to fight late application my post was delayed in post by one day to come up with a right excuse. Does Homeoffice give a grace period of receiving applications.

I have three more questions as below

1.What should I do appeal first and then apply for an EEA4?

2. or Just apply for an EEA4 without applying for an appeal?

3. Does during the appeal process do you get all the previous rights of your Visa-entry to remain back?

[Obie]

My understanding is that your application was refused for 2 reasons.

1) You used the wrong form. It should have been SET (O) as opposed to SET (M).

2) You did not receive leave to remain as a settled person, but as a family member of an EEA national. Therefore you cannot apply for SET (M).

3) You can appeal and bring the EEA point, into the equation, or reapply, which could take up to six months. An appeal may be shorter.

It is a correct assumption that your wife has been exercising treaty rights throughout this relevant period. This 5 years in question.

[indiangardner]

Yes My wife has been excercising treaty rights as of working in UK and we have documents to prove that and a registration document.

1. Yes I used the wrong form, I should have used EEA4 or the 10 year long residence ILR form.

2. I received the 5 year leave to remain Visa from inside the UK, on expiration of that I sent the ILR through marraige and my post was delayed by 1 day in reaching Home office by expiration of my Visa. My visa expired on 10/Aug and they recieved the application on 11/aug.

3. When You said reapply do you mean as an EEA4 national without an appeal? My leave to remain has expired do you think if I apply for an EEA4 application they will reject this as an invalid application? The appeal is not to Homeoffice but to the Justice ministry which they have offered me.

Does anybody know about out of date application, as my application was late do you think they took this into consideration while deciding my application ?

The appeal costs around £150.00 to the justice or courts, I wanted to save on that If I could I will donate the saved money to immigrationboards.com

[Obie]

Under the EEA Regulations, the concept of out of date application does not apply.

You could make an application. The fact that the application is out of date will have no effect whatsoever. You could even apply for citizenship if that is the ambition, provided you meet the criteria under section 6 (1) of the nationality act 1981.

[vinny]

There's no point in appealing as the refusal of SET(M) was correct.
There's no point in applying for SET(LR) as that also requires proof that you are lawfully in the UK throughout the preceding 10 years, including time spent under the EEA regulations.
Best to apply for confirmation of PR (EEA4), if you have completed 5 years under the EEA regulations.

[Obie]

Precisely, notwithstanding the fact that he used the wrong form, he will be entitled to have his appeal allowed under the EEA Regulation or the Immigration Rules under 85 (3) or (4) o f the NIA act 2002.

However that is academic, as it may be a cheaper option to apply.

[indiangardner]

The Best Route looks like reapplying the EEA 4 rule as it was its entitlement.

Thanks for all your advice. Hopefully last 2 questions.

1. HO has issued a Removal order, does removal orders apply to spouses of EEA nationals excercising treaty rights in UK? I wanted this removal order revoked!

2. Just clear my confusion does late application submission affect my new application 'EEA4' as my leave to remain has expired to be in UK? basically do I need to beg HO to consider it again. Usually do they have any grace period for late applications ie is one day late or 30 day late is considered to be the same thing?

[Obie]

There could not have been a removal order or direction as you are an EEA family member. If there is one, it is obviously invalid.

You need to write to them with your EEA supporting document, informing them that the Removal is invalid.

No the concept of late application is not applicable to EEA application, as those rightsvare acquired automatically without the need for an application.

[sheraz7]

For information can you write down the exact wording of refusal.

[indiangardner]

Is it possible to stick picture of the refusal it is a 4 page document!

[sheraz7]

you can simply type the main refusal reasons.

[indiangardner]

There are 31 points in the list for refusal.

[vinny]

It appears that you have a right of appeal under 82(2)(i) because of their removal directions.

See also Chapter 50 > Persons liable for Administrative Removal under section 10 and (EEA) EEA Administrative Removals.

[Obie]

In order to prevent applicant from having a second removal appeal, UKBA combines refusal of leave in cases were people had a leave when their application was lodged, with a removal direction.

That removal seems unlawful, it was not a decision taken in accordance with Reg 19 (3b). The applicant still have rights under the EEA regulation, and because there is a removal direction, you may be exempted from the appeal fees that we were talking about earlier, and you can put the EEA point . But as you will be reapplying, that is not necessary.

[indiangardner]

Thanks for your reply everybody.

http://www.ukba.homeoffice.gov.uk/eucit ... /applying/

Above is a link to the UKBA requirement for status to non-EEA nationals who have completed 5 years of spouse visa living in UK continously.

CONCLUSION
1. It expressly states that I dont require any endorsements ie a VISA or leave to remain from the home office unless required by myself if I have lived in the country for more than 5 years.

2. Any order of detention and removal is illegal and prejudiced.

So I a non-EEA national can live in UK without any Visa in UK after completing my 5 year spouse VISA/RESIDENT premit of an EEA national in UK.

[sheraz7]

Read too:
Time spent in UK with a right to reside under EEA regulations
This page tells you how to consider a long residence application when a person has spent
time in the UK with a right to reside under the European Economic Area (EEA) regulations.

Time spent in the UK does not count as lawful residence under paragraph 276A of the
Immigration Rules for:

 third country nationals who have spent time in the UK as:
o the spouse, civil partner or other family member of an European Union (EU), or
o an EEA national exercising their treaty rights to live in the UK but have not qualified
for permanent residence
 former family members who have retained a right of residence.

During the time spent in the UK under the provisions of the EEA regulations, the individuals
are not subject to immigration control, and would not be required to have leave to enter or
leave to remain. For more information, see related link: 05 Residence card applications.

However, you must apply discretion and count time spent in the UK as lawful residence for
family members of EU or EEA nationals exercising their treaty rights to reside in the UK, if
they meet all the other requirements for long residence.

This does not affect the rights of family members of EEA nationals to permanent residence
in the UK, where they qualify for it under Regulation 15 of the Immigration (European
Economic Area) Regulations 2006. For more information, see related link: Immigration
(European Economic Area) Regulations 2006 – Regulation 15

[askmeplz82]

Thanks for your reply everybody.


So I a non-EEA national can live in UK without any Visa in UK after completing my 5 year spouse VISA/RESIDENT premit of an EEA national in UK.

EEA2 resident card ( the one you have ) and

Permanent resident card

is not mandatory at all. You can apply even BC even without those as long you meet other requirement ( Exercise treaty right for 6 years )

You have not overstayed if you are married to an EU national exercising treaty rights. Applying for residence documentation or Permanent resident is optional in the UK - though it is recommended for Work, Travelling

[dotsystem]

Why would you wanna pay like 1k to apply on SET M OR 0, when EEA 4 is 55 pound?